Orenstein’s Ruling

…on the Apple case in New York. The Wall Street Journal‘s Law Blog has some notes on Orenstein’s ruling.

In a discussion of why the 1994 Communications Assistance for Law Enforcement Act (which in the context of this discussion authorized things like pen registers in telecommunications companies’ landline telephone switching centers to be attached to specific telephone circuits in response to a search warrant) wasn’t applicable to the New York case, Orenstein wrote

The absence from that comprehensive scheme of any requirement that Apple provide the assistance sought here implies a legislative decision to prohibit the imposition of such a duty. Thus, even under the government’s reading of the [All Writs Act], I would conclude that while the matter is a close call, the Application seeks an order that is not “agreeable to the usages and principles of law.”

And (here as summarized by the Law Blog) in answering a hypothetical in which the President proposed a bill requiring [Apple] to submit to the government in similar cases and the Congress unanimously rejected it:

Under the government’s reading of the All Writs Act, he says, the Justice Department could still seek an order compelling Apple’s assistance “because Congress had merely rejected the bill—however emphatically, and however clear its reasons for doing so—rather than affirmatively passing legislation to prohibit the executive branch’s proposal.” He describes that reading of the All Writs Act as “absurd.”

“Absurd” understates the case. Here’s what the Constitution says about what the government is permitted [sic] to do:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

If it’s not a specifically named capacity of the government to do, it is expressly forbidden the government. Full stop.

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